Non-citizens who are not lawful permanent residents and who are convicted of aggravated felonies are subject to an expedited procedure known as "administrative removal." An Immigration and Customs Enforcement (ICE) officer makes the determination as to whether the person has been convicted of an aggravated felony. This determination is not reviewable by an Immigration Judge. If the person expresses a fear of returning to his home country, an asylum officer will conduct a reasonable fear interview, and if the officer determines that the person has a reasonable fear of persecution or torture in his home country, the person will be permitted to apply for withholding of removal and protection under the Convention Against Torture before an Immigration Judge.

Though the Immigration Judge cannot review the aggravated felony determination, a circuit court has jurisdiction to review this determination. The question posed to the Fourth Circuit is whether the non-citizen must make some effort to challenge the aggravated felony determination with ICE in order to exhaust all of his administrative remedies before bringing a challenge in federal court. The court noted that "[t]he question of whether DHS's expedited removal procedures provide an alien with the opportunity to challenge the legal basis of his or her removal--and thus whether we have jurisdiction to hear such a challenge when a petitioner fails to raise it before DHS--is one that has split our sister circuits." CompareMalu v. U.S. Atty. Gen., 764 F.3d 1282, 1288 (11th Cir. 2014) (no jurisdiction), with Valdiviez-Hernandez v. Holder, 739 F.3d 184, 187 (5th Cir. 2013) (per curiam) (jurisdiction lies).

Though the Fourth Circuit recognized that the Notice of Intent to Issue an Administrative Removal Order gives the non-citizen an opportunity to rebut the charge, it found that such a rebuttal attempt was not a necessary step in order to establish jurisdiction for review with the federal appeals court. Specifically, the court determined that the rebuttal process is geared toward challenging factual findings made by ICE, but not the legal conclusion that the non-citizen has been convicted of an aggravated felony.

The court advised that "[n]othing in our opinion prevents DHS from changing the Form I-851 to make it clear that DHS wishes to require aliens to raise legal arguments in expedited removal proceedings. Such a change would provide clear notice to aliens of their right to raise legal issues in a manner that the present form does not. The opportunity to raise a legal challenge would then become, as we have earlier noted, one of the steps that the agency holds out and therefore an administrative remedy that must be exhausted."